Home ARDEX Terms and Conditions of Sale

ARDEX Terms and Conditions of Sale

1           Application

  • These terms and conditions of sale (Terms) apply to all supplies of Goods and/or services by ARDEX New Zealand Limited, its successors or assigns (ARDEX New Zealand, we, us or our) to you. By requesting the supply of Goods and/or services from us you agree to be bound by these Terms.
  • We may amend these Terms from time to time. Any varied terms will be published on our website at ardex.co.nz, and will apply to the provision of all Goods and/or services you order after the date on which the varied terms take effect.

2           Ordering Goods

  • You may from time to time request that we supply you with Goods. In your order you will specify the quantity and type of Goods that you require, and comply with any other ordering requirements we may notify to you.
  • You may not cancel any order for Goods (whether fully or in part) without our written consent in our discretion.
  • Nothing in these Terms requires us to accept any order for Goods you submit, and we may cancel any order you make by written notice to you. This could be for a range of reasons, including supply constraints or your financial circumstances.
  • You must satisfy yourself as to the suitability for your intended purposes of all Goods supplied by us to you.

3           Price and Payment

  • The price for all Goods will be at our standard prices for Goods applying at the date of despatch. Our prices are subject to change without notice.
  • Unless specified on our invoice, the price for all Goods are exclusive of any taxes, duties, levies or similar (such as Goods and Services Tax), freight costs and insurance charges applicable to the Goods, all of which are payable by you at the same time as the price for the Goods.
  • Payment for all Goods and related charges is due and payable in full on the 20th of the month following the month of our invoice, unless other payment terms have been agreed with us. You must pay all amounts set out in each invoice in the manner set out in the invoice and without set-off or deduction.
  • If any amount payable by you to us is not paid by the due date for payment then we may, without prejudice to any other remedies, charge default interest to you on the unpaid amount at a rate equal to 2% per annum above the prevailing overdraft rate charged by our principal bankers (or such other bank as we nominate), both before and after judgment, calculated on a daily basis from the due date until the date of payment.

4           Delivery of Goods

  • We will use reasonable efforts to supply all Goods by any estimated delivery date. However, we will not be liable for any delay or non-performance in supplying Goods to you, including where there are delays in processing or freight.  You have no right to reject any Goods due to such delay or non-performance. We may deliver any Goods in instalments.
  • Whilst we shall use all reasonable endeavours to comply with your particular delivery requirements and order specifications, you will not be entitled to cancel the whole or part of your order, to claim compensation, or to reject any Goods, by reason of our failure to comply with your delivery requirements or minor variations to the Goods as a result of changes to the manufacturing processes or specifications.
  • All Goods will be delivered to you at the address set out in our order confirmation. Delivery will be completed at that point.
  • On delivery of any Goods being completed, you must inspect the Goods and notify us of any damage to or defect in the Goods. You must give us written notice of any claim in respect of any Goods within 24 hours of delivery of those Goods to you in order to be able to proceed with any claim.

5           Risk and Title

  • Risk in all Goods passes to you on delivery of the Goods to you.
  • You acknowledge that title to all Goods will not pass on delivery of the Goods to you, but will remain with us until full payment of all sums owing in respect of such Goods has been made.
  • Until title to any Goods passes to you:
    • you agree to hold the Goods as fiduciary bailee for us and you must store the Goods in such a way that they are clearly identifiable as our separate property;
    • you must keep separate records in respect of the Goods until payment in full has been made;
    • you must store the Goods in a way that protects them from damage or deterioration; and
    • you may, in the ordinary course of your business, sell the Goods for full consideration, but the proceeds of the sale will be our property (which you will hold on trust for us and pay as we direct).

6           Return of Goods for Credit

  • We will not accept return of Goods for credit without prior authorisation which is entirely at our discretion. A handling fee of 15% of the selling price may be charged by us.
  • Any Goods which you return for credit will only be accepted if they are in the original packaging, in pristine order and condition and accompanied by documentation showing:
    • Your name, address and account number;
    • Our invoice number;
    • Reason for return; and
    • Our authorisation number.
  • If we authorise the return of Goods, the Goods must be carried by our nominated carrier at normal rates at your cost.

7           Withholding Supply

  • We may, irrespective of whether or not an order has been accepted and without notice to you, withhold supply to you, and we will not be liable for loss or damage resulting directly or indirectly from such action, where:
    • we have insufficient Goods to fulfil the order;
    • the Goods ordered have been discontinued; or
    • we have determined, in our absolute discretion that credit should no longer be extended to you.

8           Minimum Orders

  • We may specify the minimum order value which we shall accept from time to time and impose a surcharge should you require delivery of Goods having a value less than the minimum order value.

9           Modifications to Labels

  • You may not, without our prior written consent, alter, remove or obliterate any labels, which we attach to the Goods.

10         Default

  • Where you are in default under these Terms, we may:
    • suspend or terminate any credit facility made available to you (at which time all amounts owed by you to us become immediately due and payable);
    • suspend or terminate any agreements or arrangements to supply Goods to you, including diverting any Goods already despatched; and/or
    • recover from you:
      • all costs incurred by us arising from such default and exercising our rights (including legal costs and disbursements on a solicitor-client basis and enforcement action including but not limited to proceedings taken by us); and
      • all ARDEX New Zealand’s losses or damage arising from your default and exercising our rights, including packaging, storage and demurrage costs, loss of profits and any reduction in value of the Goods.
    • We (including our agents and contractors) may enter any premises in which Goods are situated at any time after a default by you occurs (or before any such event if we believe its occurrence is likely) to remove and repossess any Goods. To the extent permitted by law, we will not be liable for, and you indemnify us against, any damage or loss you or any third party incurs as a result of our actions under this clause.
    • Under these Terms, a default by you occurs if:
      • you breach these Terms or any other agreement with us;
      • you become bankrupt or insolvent (in that, in our opinion, you are not able to pay your debts as they fall due, or you are placed into liquidation, statutory management, receivership, voluntary administration or are dissolved, or you enter into any arrangement for the benefit of your creditors); or
      • we become aware of any information that we considers might affect your creditworthiness or ability to comply with these Terms or any other agreements with us.

11         Limitation of Liability

  • Except for any written warranties given by us to you, all express or implied representations, warranties, guarantees, or conditions in respect of Goods supplied to you (whether such obligations arise under statute, at common law or otherwise) are excluded to the extent permitted by law.
  • ARDEX New Zealand and you agree that where the sale and purchase of Goods under these Terms are for the purposes of trade, having regard to all relevant circumstances of these transactions, it is fair and reasonable that (i) the Consumer Guarantees Act 1993 and (ii) sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply to these transactions to the extent permitted by law.
  • Notwithstanding any other provision of these Terms, our maximum liability (in the event such liability exists) in respect of any breach of these Terms or for defective Goods supplied is limited, at our option to:
    • the replacement of the Goods;
    • the supply of equivalent Goods;
    • the repair of Goods; or
    • refunding the price paid by you for the Goods,

and will not in any event exceed the amounts paid by you to us for the relevant Goods (whether in contract, tort (including negligence) or otherwise).

  • Where we elect to replace any Goods we will use reasonable endeavours to do so as soon as practicable but will not be liable for any delay in such replacement.
  • Notwithstanding any other provisions of these Terms, we will not be liable, whether in contract, tort (including negligence) or otherwise:
    • where any Goods are not transported, stored, handled or used in accordance with any written or oral instructions, directions or technical specifications given by us or any supplier or manufacturer; or
    • for any special, indirect, incidental or consequential loss, damage or injury of any kind, or for any loss of profit or revenue, or for any other economic loss, to the extent permitted by law.

12         Governing Law

  • The laws of New Zealand govern these Terms.
  • You agree with us to submit to the non-exclusive jurisdiction of the Courts of New Zealand and agree that any legal proceedings may be heard in those Courts.

13         Claims

  • Any claims by you for short delivery must be made within 7 days of the delivery.
  • Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within 30 days of delivery.
  • Subject to clause 4.4 in respect of any damage to or defect in the Goods, any other claims must be made by you within 60 days of delivery unless the Goods supplied are accompanied by a separate written warranty or guarantee for a longer period in which case the separate written warranty or guarantee will prevail.

14         Clerical Errors

  • We reserve the right to correct clerical errors without notification.

15         Personal Property Securities Act 1999

  • Because of the retention of title held by us under clause 5.2, we hold a Security Interest in all Goods supplied by us to you from time to time under the PPSA. You agree (to the extent permitted by law) with us:
    • to promptly do all things, sign any further documents and/or provide any information and assistance which we may reasonably require to allow us to register, maintain and enforce its first ranking security interest;
    • to waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to our Security Interest;
    • to contract out of your rights under the sections referred to in sections 107(2)(a) and (c) to (i) of the PPSA; and
    • that nothing in sections 114(1)(a), 133 and 134 of the PPSA applies to these Terms, and accordingly to contract out of these sections.
  • Our Security Interest continues in any proceeds arising from the sale of the Goods.

16         Privacy

  • We collect, store and use personal information in accordance with our Privacy Policy (as may be amended from time to time in accordance with the terms of the Privacy Policy), which forms part of these Terms and is available here: https://www.ardex.co.nz/privacy-policy.

17         Website

  • Your use of our website (www.ardex.co.nz) is governed by our Website Terms of Use (as may be amended from time to time in accordance with the terms of the Website Terms of Use), which form part of these Terms and are available here: https://www.ardex.co.nz/terms-of-use.

18         Online Shop

  • Your use of our Online Shop is governed by our Online Shop Terms of Use (as may be amended from time to time in accordance with the terms of the Online Shop Terms of Use), which form part of these Terms where you are purchasing Goods through the Online Shop (whether accessed through a web browser, mobile application or otherwise) and are available on the relevant Online Shop platform (e.g. website or mobile application).

19         Force majeure

  • We will not be liable, and you will not be entitled to cancel any order, for any delay or failure by us to perform its obligations under these Terms caused directly or indirectly by any event or circumstance beyond our reasonable control (including without limitation fire, accident, earthquake, flood, drought, crime, war, blockade, civil commotion, epidemic or pandemic (or any response, requirement or restriction of any government, semi-governmental, or judicial entity to the epidemic or pandemic), strike, lockout or labour dispute, shortage of fuel, power or raw material, inability to procure stock or transport, or acts or omissions by governmental or regulatory authorities).

20         Entire Agreement

  • These Terms, together with our order confirmation and invoice, is the entire agreement between you and us for the supply of Goods, and replaces any earlier correspondence, discussions and agreements on the supply of the Goods (whether oral or written) and any documents provided by you.

21         Convention

  • The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) does not apply to the sale and purchase of the Goods.

22         Waiver

  • Any waiver of these Terms will not be effective except to the extent agreed in writing.

23         Assignment

  • You may not assign or subcontract all or any of your rights or obligations under this agreement without our prior written consent. These Terms will be binding on your successors and permitted assigns.

24         Severability

  • If any provisions in these Terms is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, that provision will be amended to the extent necessary to make it legal, valid and enforceable without altering its meaning or intent. If that is not possible, that provision will be severed from these Terms and the enforceability of the remaining provisions will not be affected.

25         Interpretation

“Goods” means all goods supplied from time to time by us to you provided that:

  • (but solely for the purpose of the application of the PPSA) where the goods supplied are your inventory, then all references to “Goods” in these Terms shall, in respect of those goods, be read as references to inventory for so long as they are held by you as inventory; and
  • where the goods supplied are not inventory, then all references to “Goods” in these Terms shall, in respect of those goods, being the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by us and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by you, incorporated in and form part of, these Terms and (unless the context requires otherwise) includes the proceeds of such goods and any product or mass which the goods subsequently become part of.

“PPSA” means the Personal Property Securities Act 1999, and where the context permits, includes the Personal Property Securities Regulations 2001.

“Security Interest” means the security interest provided for by these Terms.